What happens to my kids if I die?
Whether you’re a parent of teens, or have recently welcomed a new baby into your life, chances are you’ve asked yourself this question: What happens if I died?
This question can be especially loaded if you’re a single parent.
Have you done everything possible to care for them?
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To make sure that your wishes are honored, and decisions about your children’s future is not left up to the courts, here’s what you need to know about what happens to the child when a parent dies.
- What happens when one parent dies?
- How to set up guardianship in case of death
- Create your own will: Best places to write your own will
- What happens when both parents die?
What happens when one parent dies?
When a parent dies, what happens to your child depends on a few factors:
- Whether you’re married to the other parent
- The custody arrangements if you’re divorced or were never married to the other parent, and
- If you have a will
If the legal mother and father are married to each other, this question is easy to answer: When one parent passes on, the surviving parent gets custody.
But what if you’re not married—or were never married to your child’s father?
According to the U.S. Census Bureau, 27% of kids live with single parents. Where your children are placed should you die depends on your legal rights as a father or as a mother.
When thinking about what happens if you’re divorced and die without a will, these questions may come up:
- If a mother dies, does the father automatically get custody?
- If a father dies, does the mother automatically get custody?
If the other parent is at all involved in the child’s life, and there is a custody and visitation schedule in place, chances are good the child will live full-time with the child’s surviving parent.
If the parent with sole custody dies, the court will decide whether to place your kids with the non-custodial parent based on what is best for the children. Grandparents can get custody over the father or mother if one or the other isn’t safe or practical — say, if one parent is incarcerated, addicted, or has been largely absent from the child’s life. But the child is most often placed with the surviving parent when the custodial parent dies.
What happens when both parents die?
Having a situation where both parents depart this life at the same time is rare, but it’s a good example of why every parent needs to have a will. Otherwise, you have no say in who cares for your child because the decision rests with the court.
If this happens, the first thing you need to know is that child custody only applies to parents.
When another adult — such as a grandparent, friend, or another relative — is given the responsibility to care for your child through a will, custody no longer applies. Instead, the court will appoint them as the legal guardian of your child.
Definition: legal guardian
A legal guardian is a someone appointed by the court with legal authority and responsibility to care for a child. This person may also be responsible for the child’s legal and financial affairs, but not necessarily.
In some cases, especially if there is a large sum of money from an inheritance or life insurance policy, a conservator is appointed by a judge to manage the financial affairs of a child. This person may also be the legal guardian, but can also be a second person.
To have some control over in who gets guardianship and conservatorship, a will or a living trust in place is critical. You might see it as complicated and expensive, but companies like LegalZoom can get you set up with the documents you need for an affordable price.
Wealthysinglemommy founder Emma Johnson uses LegalZoom’s Living Trust bundle, which includes documents for power of attorney, living trust, a living will — plus one year free, unlimited attorney advice and review.
But before you whip out your credit card to place an order, you need to know what a few terms actually mean.
What is a will?
A will is short for last will and testament, which is a legal document that details how you want your property to be distributed when you die. A will is also the formal documentation that lets you express the preferred guardian of your children.
According to LegalZoom, the information in your will supersedes any other document provided it has been executed wholly and correctly.
What should a single parent will include?
A few essentials you’ll want to include if you’re creating your own will include:
- Naming someone you trust as executor who will carry out the terms of your will
- The debts and taxes your estate could owe after your death
- The assets you own such as real estate, vehicles, bank accounts, and personal belongings, as well as life insurance payouts.
- Specifics about how you wish your assets be allocated to care for your children.
- The full names, birth dates, and Social Security numbers of the any other beneficiaries you want to receive your belongings or assets.
- Naming a person to take care of your kids if you and the other parent both pass away (nominating someone as a second choice is a good idea, too), or if the children’s other parent is not part of their lives.
- Alternative guardians in the event your first choice for legal guardian is unwilling or unable to care for your child
- If you have a pet, thinking about who could care for them after you’re gone
What is a living trust?
A living trust is a written legal document that places your assets in a trust for the purpose of protecting them during your life and after you pass on. The main advantage of a trust is being able to distribute your possessions after you die without going through probate court.
At this point, you’re probably wondering about the main differences between a will or a living trust.
Living trusts guide the way your assets are distributed upon your death, and they do so without the need for probate court. Having a will only, on the other hand, does not help your heirs avoid probate court. While probate court mainly exists to ensure your debts are paid and your assets are distributed fairly, there are a few things that can go wrong. For example, the probate court can decide your will is invalid. Also, it’s possible someone could contest the contents of your will, which means your assets may or may not wind up where you wanted them to be.
Now that you’re familiar with these documents, you’ll want to ask yourself do I need a will or living trust?
While you might think it doesn’t matter, you might not get what you want unless you have a will because laws in each state determine what happens to your children and your stuff. This means that, without a will or living trust, you won’t have any say over who gets custody of your kids, your family heirlooms, jewelry, baseball card collection, or anything else after you check out of this life.
What does a single parent living trust include?
Your single-parent living trust should include:
- Durable power of attorney
- Advanced health care directive or health care power of attorney
- HIPAA authorization or waiver
- Living trust
What is an advance directive?
If you find yourself in a coma or unable to speak, your loved ones and the medical staff won’t know whether you want life support or to be resuscitated. Having an advance directive can communicate your wishes and appoint someone to be your medical power of attorney to make decisions on your behalf.
What is an advance directive vs. a living will? A living will is part of your advance directive which describes the types of healthcare you want to receive if you can’t speak for yourself.
Create your own will: Best places to write your own single parent will
- Trust & Will – allows you to create a will, a trust, and name a guardian, easily, online. A+ rating from the BBB, have solid reviews on TrustPilot, and they have a promo code: EXCLUSIVE10.
- Rocket Lawyer – easily make your will online for free, and share it with important people. If you have questions, get them answered for a low hourly fee.
How to make a will for child custody
As you can see, having a will is an important part of being a parent. However, the next question is: “How much does a will cost, and how do you make one?”
Hiring an attorney can be reasonably affordable if your case is very simple, with few assets or complications. Expect to pay $1,000 to $2,000 for this type of service.
If you have considerable assets, including multiple homes, many brokerage accounts, business holdings, then you will want to hire an estate attorney to help.
Likewise, if you have a complicated relationship with your child’s other parent who does not have equal legal custody, you have a special needs child who requires special considerations, or you are responsible for a disabled or aged loved one, a skill attorney is worth the investment.
If you’re at least 18 years old, are of sound mind, and have a couple of people who can sign as witnesses, you’re off to a good start.
Once you have your will, be sure to have it officially notarized, keep it safe by making copies and finding a fireproof lockbox, bank deposit box, or filing cabinet to store them in. Also, keep a copy with your attorney, or a trusted friend (the executor of your estate is a good choice) — as well as store it on the cloud, and give access to a trusted friend.
Also, remember that life is always changing, and you’ll want to review and update your will if there’s a divorce, change of financial circumstances (you lost your house or business), a child turns 18 or graduates from college, or a new grandchild is born.
Where to keep a will
The critical part to remember is that a will is a legal document that must meet specific standards. Every state has different laws about how to make a will, and yours won’t be valid if it doesn’t meet your own state’s legal requirements. There are a few main standards to follow, however. For example, your will needs to follow a universally accepted format and it needs a valid signature. A valid will should also be executed by someone who has “testamentary capacity” as well, although each state has its own guidelines in terms of what exactly constitutes sound mind.
Your will should always be in writing, and it should involve more than jotting down a few lines on the back of an envelope. While some states would allow it, getting the court to recognize something that informal can complicate the entire process.
Also, make sure your signature and the signatures of two witnesses are on the last page. Having your will notarized isn’t a requirement in every state, but it’s a good idea and can speed up the court process after you pass away.
Finally, if you’re in a position of wanting to write someone out of getting any inheritance, you must specifically include that in writing in your will. Otherwise, that person could argue that you forgot to include them and they might even end up with a portion of your estate.
But creating a will by yourself is possible with the right forms on RocketLawyer, or using LegalZoom’s templates and examples of wills will set you on the right path. LegalZoom’s package includes legal advice ensures that a specialized attorney will answer your questions, review your completed documents and ensure they are legally secure, and reflective of your wishes.
What if there are complications?
Life is complicated and child custody issues aren’t always as cut and dry as you’d like them to be. In messy custody situations, you may not like the idea of your children being placed with the other parent if you die while they’re still young.
What if you have a child with special needs?
In these situations, an attorney specializing in special needs families is important. If you’ve never worked with an attorney before, finding one who is trustworthy is always a concern. You could always check Yelp reviews or Avvo, but the best approach is talking with family, friends or other professionals like an accountant or financial planner to get a recommendation.
As for how much you’ll pay, attorney’s fees vary across the board. After talking to a few legal offices, you’ll notice that costs tend to fall into two rate structures, either hourly or a flat-rate retainer fee. However, some attorneys use a combination of the two methods and require a retainer payment upfront plus an hourly rate after that money runs out.
The bottom line: If you feel you need professional legal advice, you can pay for help. Personalized legal advice can give you peace of mind and help make sure your estate is preserved when you die.
How to set up guardianship in case of death
If the children are still minors when you pass, establishing guardianship can be done one of two ways — with or without a will.
Setting up a guardianship with a will
With a will, you’ll have the satisfaction of knowing the court will follow your wishes unless your request is impractical, or the person doesn’t want the responsibility of caring for your children.
Ideally, you can establish guardianship for your kids by working work with the other parent and pick a person the two of you can agree on. This way, you both nominate the same person in your wills and the court can appoint a guardian with no trouble if you both die.
Whoever you chose to serve as guardian should have a copy of your will, and they can bring the document to the probate court when the time comes. Some states require the nominated guardian to fill out an application or petition before they’ll grant guardianship, and they’ll likely have to pay a filing fee, too.
Setting up guardianship without a will
When parents die without a will, the court can still appoint a guardian, although this isn’t the best situation since the courts won’t have any idea what your wishes are.
But someone needs to care for your kids, and the court should have legal guardianship forms available to fill out in case of your death.
In most jurisdictions, anyone with an interest in the minor’s care can fill out this form to request appointment as guardian, including a sibling if they’re at least 18 years old and can provide a stable home environment.
However, the courts will decide who gets guardianship of your minor children, and often look to grandparents, other relatives, or friends of the family to fill the role.
In the unfortunate event that a suitable person can’t be found, or if one isn’t willing to serve as guardian, foster care might be the only option and your child could end up as a ward of the state.
What will happen to your kids?
While making a will might feel overwhelming, it’s the most fundamental legal document for child custody if the parents die. LegalZoom has guardianship forms that can become part of your estate plan, making the process go much smoother.
Instead of leaving their well-being hanging in the balance, you’ll feel better knowing you helped choose who has custody of your kids if you pass away while they’re still young.
What this single mom learned from caring for her dying parents
This is a guest post by single mom Cassi Upshaw, who lives in Gulf Shores, Ala., with her son.
I cared for my mom for roughly seven years. She was on disability, from a kidney disease that was incurable. Over the years, it quickly went from her helping care for my son and helping me out as a single mom, to me caring for her, to my son even helping pick up the slack.
The biggest challenges were co-parenting while our roles were being reversed and I was more the parent, and she was more the child. Having to take her keys from her and set down ground rules was a very difficult task, as the illness progressed. I also had the challenge of being recently single, wanting to have a dating life, but moving back in with her because she had a larger house and financially it just made sense. The lines were blurred for a while about who was helping who. My desire to have my own life, but not to abandon her either, was a really hard thing to balance. When it came to hooking her up to machines nightly, after I’d worked a full day, gotten home and cooked dinner and did homework with my son, there was little time left for myself, much less any social activities. As selfish as that sounds, a social life was something that I needed then more than ever.
For the last 10 months of my mom’s life, my dad stepped in and helped out, moving her into his home. While they were still married and had a perfectly fine relationship, they lived separately most of my adult life, and my mom always followed my son and me wherever we moved.
To this day, I harbor the guilt of not being there in her last days
The last few months of her life were the hardest. Not being there daily, but knowing I had to be here for my son was a difficult thing to balance. To this day, I harbor the guilt of not being there in her last days, as she quickly progressed into the latter stages of life. Ultimately I know I made the right decision, I took care of her for as long as I possibly could, I asked for, and accepted help when it was available. At the end of the day, my responsibility was to take care of my son, and my dad was capable of taking care of my mother.
After her passing, my dad didn’t get sick, but he definitely began to show his age. For nearly the next year and a half, he became my person. My person to grieve with, complain with, and laugh with. He visited me at least one week every two months — sometimes one week every month. Our relationship had never been closer. For once, he was truly alone, and I tried to suffice as a companion in his life. He went through a rebellious stage, where he began drinking again and gambling, kind of like a young college kid trying to find his way through the ins and outs of the world. Having recently lost my mother, rather than ridicule him, I really found humor in it. Seeing him ultimately have fun, seeing him laugh and have a good time, seeing him hit on the pretty 30-somethings at the casino was hilarious, and they knew that 69-year-old man was harmless. In someways, he was still his ornery self, getting stuck in his old ways, and hypocritical thoughts, but in many other ways, he was a lively spirit, as though he had been born again.
If he was ornery and spiteful, I kept my laughter to myself, knowing that one day I would miss his crotchety old ass.
As the weeks went on, he made comments about not feeling well, looking back on it, I overlooked all the signs, and ultimately, I’m really glad I did. Rather than worrying every single day about his well-being, I learned to appreciate him for what he was that day. If he was ornery and spiteful, I kept my laughter to myself, knowing that one day I would look back on that, and miss his crotchety old ass… and if he was light on his feet, carefree, and almost irresponsible in a sense, I ate it up. I made him feel like there was no reason to think anything less. He opened up to me about not ever wanting another woman to marry, but having one to snuggle up to you every now and then wouldn’t be so bad.
The facade that I had grown up thinking he was so strong always, all disappeared. He became real to me. He became relatable. The last time he called was in the wee hours of the morning; he was at the casino, had entered some crazy drawing and was playing Texas hold’em. He left me a message, telling me that he had met up with some girls, the same ones he had spent the previous weekend getting to know and that he was having a great time. He went to bed at night and never woke up.
Alone might be where I’m at, but I can always depend on myself, and I won’t ever let me down.
The challenges I now face are not having someone to call when I have a question about parenting. No longer feeling like I have someone on my side, no matter what might happen. The harsh reality of being ultimately alone, some days, it’s overwhelming. But I’ve learned that I’m far stronger than I ever thought I could be. I’ve learned, that I lived the first 29 years of my life scared, I was scared of everything. I constantly called to check on my parents, wondering if they were OK every minute of every day. I’ve double, triple, quadruple locked my doors, always afraid of what might happen. But when my parents died, when they both finally left me, and I learned what it was to be ultimately alone. I found the strength inside myself. I realized, alone might be where I’m at, but I know I can always depend on myself, and I won’t ever let me down.
I realized, despite being scared for 29 years, everyone still dies. My dad always used to say, “no one gets out of here alive.” There’s really no truer statement… So rather than being scared, now I’m living. At 30 years old, I’m living. I’m living my life the best that I can every single day. I’m being the best mom, the best employee, the best woman, the best everything I can. I realized, rather than blaming circumstances or people influencing your life for the negative outcome, dismiss it, and push forward. Channel that energy into something positive.
We no longer have problems, but challenges.
We no longer have problems, but challenges, and it takes as much energy to bitch about one as it does to find a solution and pursue it. So while my challenges maybe or may not be what you’re currently experiencing, we will all eventually come to the same conclusion. We will be here, and our parents won’t. So find your strength now. Love them for where they are in their life, wherever that might be at the moment. And learn to push forward, for your parents may have left you, but there is still a little someone looking up, depending on you to be the parent to them.
Who will take care of you as a single woman when you get old?
After you’ve had a chance to consider your parent’s needs, what about your own?
Things are real-life when you are a single woman. Nevermind if you’re a single mom.
You could have a really great co-parent in your kids’ dad, remarry, make a ton of money with a successful business or career, inherit a bunch of dough and be all set when you retire — young enough to enjoy it.
That is my plan, and I do hope that is my reality (though not so sure about the marriage part — that is for another post. And I’m 99.9 percent certain there is no windfall in my future …).
In fact, making sure that women are financially solvent through every stage of life is critical if we will ever have gender equality — which is the underlying reason why I get up in the morning and write on this blog!
Unfortunately, we have so far to go when it comes to the wage gap, and the saving and investing gap.
Why single moms need long-term care insurance
Single moms, in fact, fare the worst when it comes to these metrics.
Not only do we have a disproportionate burden of caring for children, it is harder to build a career when you have children to care for solo, and so we earn less.
It is harder to build a career when you are focused on kids, and it is, of course, harder to save and invest for our own futures when you have those kids.
Single moms are also very likely to care for older parents and disabled loved ones — we are members of the sandwich generation, but on steroids!
One recent study by the Centers for Disease Control and Prevention of working caregivers found that nearly half arrive at work late or leave early to care for their loved one, 15 percent take a leave of absence or reduced hours, while others turn down promotions or leave work entirely.
If you’d like to know if your older relative qualifies for long-term care insurance, contact LTC Consumer for a quick quote.
There are yet other forces at play — like single mom guilt. An Allianz survey a few years ago found that the majority of Americans were making the big mistake of ransoming their retirements by over-saving for their children’s college.
Single moms commit this no-no far more than other families, Allianz found.
I suggest the reason is that we feel so guilty for the fact our families are not traditional that somehow we “owe” it to our kids to help them get through school without the burden of debt.
But guess what? That means that we are now a burden on our kids. FACT.
This guilt — paired with actual financial hardships of single motherhood — means that by our later years, there isn’t much in the bank.
I like to say there are loans for college, but there are no loans for retirement. Heck, there are loans for everything — Disney, school clothes, soccer teams, health insurance can all go on a credit card. But not retirement!
As a result, we become a burden on our children. We may already be caring for our elderly parents, and whether or not you want to admit it, that is a burden you wish you did not have. The U.S. Department of Health and Human Services reports that it costs on average $92,376 per year for long-term care in a nursing home.
Thankfully, in addition to prioritizing earning, saving and investing, there is something else important that single women can do to be independent and afford quality life in the event that we can’t care for ourselves: long-term care insurance.
For all the reasons women need long-term-care insurance more than men, women also need life insurance more than men. Thankfully, there are many affordable options for life insurance you can get quickly, online.
Bestow stands out from other companies offering affordable term life insurance:
- Prices. Sample Bestow policies for a healthy 30-year-old non-smoker start at $50,000 policy for $10/month (and go up to $1.5 million).
- Term life insurance. Bestow offers 10, 15, 20, 25, and 30 year terms.
- No medical or lab exam. Ever.
What is long-term care insurance?
Long-term care insurance covers aid and treatment options in the event that you need care for the long-term.
Technically, this usually means one of two things:
- You need help with two out of six daily living activities of living (like bathing, dressing, using the bathroom, eating, and continence) or,
- You have a severe cognitive impairment, like dementia.
On average, the cost of a nursing home is $92,376 per year, according to the U.S. Department of Health and Human Services.
Home care is about half that — while nursing care can exceed $140,000 in some states.
9 services covered by long-term care insurance:
Long-term care insurance covers care that is not usually covered by health insurance, including Medicare.
It can include many types of care, some in your home, and some in a facility, including assisted living and nursing homes.
Some of these services might be provided by highly skilled therapists and doctors, while others by home care assistants.
- Home health care
- Respite care
- Hospice care
- Personal care in your home
- Assisted living facilities
- Adult day care centers
- Nursing homes
- Memory care facilities
In some cases, family members can be reimbursed as paid care providers
This is care that typically falls outside of your typical health insurance coverage, including Medicare, which only covers a very short nursing home stay.
For those living below the poverty level, Medicaid can pay for some of these services — but only if you are impoverished.
How does long-term care insurance work?
To help cover potential long-term care expenses, some people choose to buy long-term care insurance. You can buy long-term care insurance for yourself, or buy it for others.
Like other forms of insurance, long-term care insurance allows you to pay a set premium every month or year that helps protect you against an expensive extended healthcare needs.
To buy long-term care insurance, find a third-party broker that can help you shop different plans to find the right policy for you and your family.
LTC Consumer is a great place to start. Once you plug in your name and contact information, a licensed advisor will contact you at a time convenient for you, and educate you about the process and give you several quotes from top-rated companies.
Because LTC Consumer works with many insurers, they have access to many quotes and can offer unique discounts in some cases.
Who should buy long-term care insurance?
According to the American Association for Long-Term Insurance, the best age to buy long-term care insurance is mid-50s.
According to the trade association:
“You can lock in your good health, and today there are policies that allow you to buy some coverage now and add to it in future years.”
About 70 percent of Americans who reach age 65 will likely need some type of long-term care before they die, according to federal estimates — and women are far more likely to need this care than men since we live longer.
The average length of needing care is 1.5 years for men and 2.5 years for women.
57% of all women age 65+ will require long-term care services and 18% of women will require them for 5+ years!
For those unlucky 57% of women that need care the average length of care jumps to 4.4 years.
If you are low-income and believe you can qualify for Medicaid, long-term care insurance may not be for you.
Likewise, if you are high income or have a lot of assets you can liquidate to pay for care, this expense may not be worth it.
How much does long-term insurance cost?
Yearly premiums for long-term care insurance average $2,700, according to AARP— double that of a man of the same age, according to the American Association for Long-Term Care Insurance.
Women’s premiums are higher because women live longer, in general, and are more likely to require long-term care.
Similar to life insurance, your health plays a role in how much your long-term care insurance policy will cost.
Current health, and your health history play a big role — including whether you smoke, are a healthy weight, have an active lifestyle, and if you have a history of illness. The older you are when you apply usually means the higher the premium.
LTC Consumer offers this example from one of the largest LTC insurance companies in the United States.
These premiums are for a basic plan that would pay out $3,000/\month and $100,000 of total benefits. Both the monthly benefits and total benefits grow at 3% compound each year to keep up with the inflation of the cost of care.
For a single woman age 50 = $1,677 per year
For a single woman age 60 = $2,195 per year
When is DIY estate planning with a company like RocketLawyer a good option?
Taking a DIY approach to making a will, living trust, advance directive, or other legal matters is mostly a matter of personal preference. If your situation is especially complicated or if you have a large amount of assets, working with an attorney might be a better approach.
But when you use RocketLawyer online forms, you can be sure they meet all the legal requirements of your state. The easy-to-answer questions walk you through each form to help you complete it the right way. And since cost is a common reason people put off making a will, RocketLawyer can help you get the legal documents you need without breaking the bank.
RocketLawyer is a solid choice to create an estate plan and will, unless you have a lot of assets (wealth), a family-owned business, complicated custody arrangement or other situation where a local attorney makes more sense.
What is estate planning?
Estate planning is the legal process of transferring your wealth after death. Estate planning can also include a living will,
Estate planning can involve life insurance, and plans for creating a trust, philanthropy, and ensuring that the people you want to receive your money, investments, real estate, and items of sentimental and monetary value do indeed receive them in the event of your passing.
Estate planning can also include strategies for minimizing the sum of taxes your heirs will pay on any inheritance.
Estate planning also makes plans for any minor children or dependents who rely on you.
What documents are essential for estate planning?
These three documents are key to estate planning:
Will — a will details what happens to your property when you pass.
Trust — a trust is a legal entity into which any property or funds are transferred, and then managed.
Power of attorney — this establishes who will legally responsible for making decisions on behalf of your estate when you pass.
Do I need an estate planning attorney?
It is advisable to have an attorney go over any estate plan that you create yourself, including forms that you buy online. There are some instances when you should
Can I find an estate planning attorney on Rocket Lawyer?
While RocketLawyer does not match you with an estate planning lawyer near you, RocketLawyer's lawyers will answer your questions and review your documents within the allotted 30-minute timeframe included in the RocketLawyer program.
If the issue is too complex to be solved in half an hour, the attorney can choose to keep working with you at the pre-negotiated Rocket Lawyer On Call price, which is 40% off the attorney's hourly rate, or 10% off their flat fee. This price will be disclosed to you ahead of any billing.
This can be a good and affordable hybrid way of finalizing your estate plan, trust and will, accurately and at a low cost.
If the legal mother and father are married to each other, this question is easy to answer: When one parent passes on, the surviving parent always gets custody. But what if you’re not married? Where your children are placed should you die depends on your legal rights as a father or as a mother.
Having a situation where both parents depart this life at the same time is rare, but it’s a good example of why every parent needs to have a will. Otherwise, you have no say in who cares for your child because the decision rests with the court. If this happens, the first thing you need to know is that child custody only applies to parents.
While making a will might feel overwhelming, it’s the most fundamental legal document for child custody if the parents die. Instead of leaving their well-being hanging in the balance, you’ll feel better knowing you helped choose who has custody of your kids if you pass away while they’re still young.